42 So. 169 | Miss. | 1906
delivered the opinion of the court.
The record in this case shows that Christmas delivered to the railroad company at Mound Bayou, Miss., a certain lot of gin machinery, which was to be shipped to Delta Point, La. The machinery was delivered to the company about the 18th day of
The evidence shows conclusively that there was no wilfulness or oppression on the part of the appellant company, but the mistake which occurred was one of pure inadvertence. This being the case, the measure of damages was the value of the use of the machinery for the time which it was detained. Appellee was not entitled to recover for the time lost and expense incurred by him in going to and from Mound Bayou, and to Vicksburg and other places, in 'an effort to have the railroad company reduce the extra charge of $17.55, or in trying to locate the machinery after he gave the first notice to the carrier of its non-receipt by him; but the full measure of his damage was compensation for the time he was deprived of the use of the machinery by reason of the delay of the railroad company, and any necessary expense incurred in informing the carrier of its non-receipt. "Were there no error in the instructions, there is no theory upon which the verdict for $600 could be allowed to stand in this case, when viewed in the light of appellee’s testimony. It is shown by his own testimony that he could have obtained this machinery, about the 24th of September, on the
It was error in the court to give the second, fifth, and third instructions for appellee. The second instruction tells the jury that if they believed from the evidence that the gin stand and other machinery delivered to the defendant company at Mound Bayou, for shipment to Delta Point, was by the negligence of the company unreasonably delayed in its transportation and delivery, the jury shall find for plaintiff and assess damages. This is an imperative instruction to the jury to assess damages if they believed the shipment was unreasonably delayed, without any qualification or direction to them as to the rule by which they shall be governed in so doing. It does not tell them what damages they are warranted in assessing, nor does it tell than that they shall only assess such damage as the evidence may show appellee has suffered. This we think was error.
The fifth instruction tells the jury that they are warranted in assessing punitive damages. There is absolutely no testimony in this case which would Warrant the jury in awarding punitive damages. There was no wilfulness, or oppression, or wanton
We also think, on the facts in this case, the third instruction was erroneous. By it the jury was told that Christmas was not bound to pay the overcharge in freight demanded of him, but that he had the right to demand and receive his property at Delta Point upon the payment of the proper freight rate from Mound Bayou to Delta Point. This is a correct announcement of the law as an abstract proposition, but it is erroneous when applied to the purposes of this suit. Appellee was not bound to pay the overcharge in order to get his machinery, if the machinery alone was the' thing sued for; but he is bound to pay the overcharge and take out his machinery under the circumstances presented by this record, when he brings suit for damages for the unreasonable delay of the machinery, and undertakes to make the appellant company pay him for the time he is kept out of its use.
Reversed and remanded.